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7.28.2008

A major package of constitutional amendments backed by President Sarkozy passed by a single vote last week in the constitutional commission, a special joint session of deputies and senators. The bill sets a two-term limit for presidents, gives parliament a veto over some presidential appointments, and ends government control over parliament’s committee system. Public debate focused on letting the president address parliament once a year in a formal “state of the union” address, which has not been allowed since 1875 under the strict theory of separation of powers. The changes seek to improve parliamentary oversight ability, but also move the French system a tad closer to the American one.

Under the radar was another blow to the system of separation of powers, namely a provision allowing the Conseil Constitutionnel, France’s constitutional court, to review existing legislation for the first time. Review can occur on request by the Conseil d’Etat or Cour du Cassation (France’s administrative and supreme courts, respectively). Because of the longstanding fear of government by the judiciary, French constitutional practice had previously restricted the Conseil Constitutionnel to reviewing legislation before promulgation. The change means that for the first time since the French revolution, France has a constitutional court like those found in other European jurisdictions that can strike existing legislation.

To some extent the change (brought to our attention by Alec Stone Sweet of Yale) will have less impact in practice than it might have otherwise because French courts were already able to interpret French constitutional rights, even if they could not overturn legislation. Also, the European Court of Human Rights provided an alternative forum in which to challenge government policies that interfered with rights. But the changes will make the Conseil more visible and will set in motion interesting dynamics within France’s courts.